Constructive Dismissal

Were you constructively dismissed from your job by your employer?

A Constructive Dismissal is based upon the employee’s assertion that the company unilaterally changed a fundamental term(s) of his employment. Examples of when a constructive dismissal may be claimed include the following:

requirement that employee relocate to another city for his job;

change in job location imposing unreasonable burden on employee;

demotion;

significant changes in duties and responsibilities ie. removal of all or most reports; stripping the manager/supervisor of decision making authority;

decrease in salary (the amount of the decrease and the reasons thereof are relevant);

removal of all or some employee benefits;

persistent and continuous bullying; and

personal harassment.

In a constructive dismissal action, the employee bears the onus to prove that he was constructively dismissed. The company will attempt to refute the allegations by asserting the employee “voluntarily quit” and that there was no fundamental change to the employee’s term(s) of employment justifying the employee quitting his job.

The employee is entitled to claim the same remedies whether the action is based upon a wrongful dismissal or a constructive dismissal. Absent untenable circumstances, the employee depending upon the situation, may be required to remain in the job to mitigate his damages until he secures alternative employment.

For example: An employer decreases an employee’s salary by 20%. The employee may very well be required to remain in the company’s employ and look for alternative employment. Otherwise, if the employee simply quits and claimed a constructive dismissal, the company may argue that even if there was a constructive dismissal, he failed to mitigate his damages thereby entitling the employee to the differential amount only (assuming the employee is successful at providing a constructive dismissal).